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On behalf of Timothy O. McCalep posted in Criminal Defense on Wednesday, May 24, 2017.

In recent posts, we’ve been looking at the issue of consent as it is defined with respect to sexual assault charges here in Florida. As we’ve noted, consent is an issue that has yet to be addressed in the context of the emerging trend of “stealthing,” but consent is often an issue in sexual assault cases.

Consent, of course, is not a defense to certain sex crimes, including rape or aggravated sodomy or rape of a female less than 10 years of age, or sexual assault by persons with supervisory or disciplinary authority. Consent is also not a defense to charges of rape or sexual assault in which the allegedly consenting party was impaired by drugs, intoxicated, asleep, physically disabled, or otherwise did not have capacity to provide consent.

Consent is a defense in rape and sexual assault cases when there is evidence that both parties were willing and mentally present. Many rape and sexual assault cases, though, involve disputes about intoxication or drug impairment. An individual may claim to have been a victim of sexual assault or rape but is unable to remember anything or provide evidence sufficient to support the allegations. Or, testimony may be offered to support the charges, but the testimony is inconsistent.

When the government doesn’t have sufficient evidence to support charges of rape or sexual assault, or when the evidence presented has weak reliability, these case factors should be emphasized in building a strong criminal defense case. In some such cases, it may be able to have charges dropped or to resolve the case favorably before trial.

Just because prosecutors decide to prosecute a case doesn’t necessarily mean that a defendant has no case. Working with an experienced criminal defense attorney helps ensure a defendant’s rights are protected and that he or she has the best possible opportunity to achieve a favorable outcome in the case.

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